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Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: March 2001
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Bibliographic ID: UF00090012
Volume ID: VID00015
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER


REPORT

Volume 25, Number 3 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of I,,l ..n..i. .., College ofJournalism and Communications U University of Florida
March 2001

Appeals courtsays exportlicenses still confidential
ATLANTA An executive order kept for the names of companies licensed to granted the newspapers summary
an exemption to the federal Freedom of export goods and services to Cuba from judgment and ordered the records
Information Act in operation and bars the 1996 to 1999. released, but the appeals court reversed
U.S. Department of The department denied the the decision and remanded the case.
Commerce from releasing A C C E SS request, saying the Export Judge Frank M. Hull, U.S. Court of
information sought by two 0 0 Administration Act exempted Appeals for the Eleventh Circuit, wrote
newspapers, a three-judge RE C O RD S export licenses from release, on behalf of the panel that an executive
federal appeals panel ruled. The newspapers argued that order from President Clinton kept the
The Tampa Tribune and the St. the act had expired in 1994 and no longer export law and the exemption in
Petersburg Times filed an FOIA request protected the records, operation even after the law expired in
with the U.S. Department of Commerce A U.S. District Court judge in Florida 1994. (1/6/01)


Officialorderedto separatevotes


SARASOTA A Charlotte County
elections supervisor who once said that
she would not use machines to separate
ballots for groups conducting recounts
was ordered in January to separate out
the overvotes and undervotes for media
requesters.
Judge Sherra Winesett, 20th Judicial
Circuit, ordered Judy Anderson to
separate the 3,156 uncounted ballots
from the 70,100 ballots cast on election
day. Anderson had argued that sorting the
ballots would be equivalent to a

Cearwater stoppedfrc
ST. PETERSBURG City officials in
Clearwater must not destroy e-mail
messages while a lawsuit with the St.
Petersburg Times is pending, a circuit
court judge ruled.
The newspaper requested the release
of e-mail from Clearwater's assistant
city manager and its planning and
development administrator. City officials


SPECIAL REPORT
A preview of Sunshine Law issues
scheduled for consideration during
the Florida Legislature's 2001
session, p. 3-4.


"recount" prohibited by the U.S. Supreme
Court.
A group including The New York
Times, The Orlando Sentinel and the
South Florida Sun-Sentinel sued to get
the requested ballots. The media
estimated that with the help of machine
sorting, the count would take less than a
week compared with two months to
separate by hand. Winesett ruled that
separating ballots didn't constitute a
recount and ordered the machine sorting.
(12/14/00 1/20/01)
nm deletinge-mail
released some e-mail but refused to
release e-mail messages that they said
were personal. Some of the personal e-
mail was also deleted. Judge Anthony
Rondolino, 6th Judicial Circuit, granted
an injunction that prevents the city from
destroying any more messages. A March
1 hearing will determine if additional
messages will be released. (1/14/01)


Citruspanelwants

outofSunshine
LAKELAND Members of a
committee for the Florida Citrus
Commission want to avoid the glare of
the state's Sunshine Law.
The Blue Ribbon Committee is
charged with helping boost the sales of
domestic
grapefruit, A C C U ii


but members 1 -'
want to MEETIN
disband
unless they find a way to meet in


private.
Members say the requirements of
meeting in public and the possibility of
being quoted in the news media keep
them from fully talking about the
issues.
"I, for one, would be very reluctant
to put things on the table that need to be
put on the table," committee member
Dennis Broadaway told The Lakeland
Ledger. (1/5/01)


Police survey mustbe released to public
PINELLAS PARK A survey of Pinellas Park officials and the private
police employees done by a private company that conducted the survey
company is public record, a circuit court refused to release the information.
judge ruled. Judge David A. Demers, 6th Judicial
The St. Petersburg Times requested a Circuit, ruled the survey was public
copy of the survey, which examined record and ordered the city to provide
police employee satisfaction, but the newspaper with a copy. (1/4/01)


S







ACCESS RECORDS CONTINUED

ilmm akers use tape released through Public Records Law


GAINESVILLE The Public Records
Law made it possible for a video of a
University of Florida fraternity party to
become part of a film documentary on
the controversy surrounding a rape
accusation by a stripper at the party.
The videotape was collected by the
state attorney's office, which
investigated stripper Lisa Gier King
Peterson's claims that a Delta Chi


member raped her after she performed
at a party. "Raw Deal: A Question of
Consent," which was screened at the
Sundance Film Festival in January, cuts
between video of the party and
interviews about the party and the
accusation.
Filmmakers Billy Corben and Alfred
Spellman got copies of the video, which
includes explicit sex, through a public


records request. The two also
unsuccessfully requested an audiotape
of UF's disciplinary hearings in the
matter. The audiotapes were ruled
student records and not subject to the
Public Records Law. (Brechner Report,
Nov. 2000)
The filmmakers were criticized by
some Sundance audiences for the
explicit footage. (1/27/01 2/3/01)


Man changesplea Coml
JACKS
to avoidWeb site Nassau cc
reported v
NORTH PALM BEACH A man Records L
who was allowed to change his plea in a audiotape
1991 sexual-assault case because of how to dea
the state's online sex offender registry, At a De
pleaded guilty in January to a commission
misdemeanor battery charge instead, settle the l
Florida's 4th District Court of Jr. or requ
Appeal in 1999 allowed Bruce Brian public rec
Wiita to change his plea in a 1991 tape of the
case.
Wiita originally pleaded guilty to P RI
charges of lewd assault and sexual
activity with a child for an incident udge
involving a 15-year-old family baby
sitter. TAMPV
The court wrote that Wiita would a lawsuit a
not have pleaded guilty if he had known Network tl
the legislature would later pass a law organization
creating the Web site, which posts the and infringe
names and photos of Florida's sex criminal d
offenders. information
Wiita, who settled a civil lawsuit conversati
with the former baby sitter in October Lisa M
2000, pleaded to misdemeanor battery guilty to a
after the baby sitter told prosecutors was taped
she didn't want to testify at a new posing as a
sexual-assault trial. He received no for murder
prison time and three months Tribune pt
probation. (12/22/00) containing

FIRST AMENDMENT


mission releasestapeofsecretmeeting


ONVILLE A man suing
unty commissioners for
violations of the Public
aw will get to hear an
of the commission discussing
I with his lawsuit.
c. 6 secret meeting,
ners discussed whether to
lawsuit with Clark V. Hoshall
est mediation. Hoshall filed a
words request to listen to the
closed meeting. The

VACY


commission sent the tape, a transcript
and Hoshall's request to a circuit court
judge for a ruling.
Judge L. Haldane Taylor, 4th Judicial
Circuit, ordered the commissioners to
turn over the tape or file a request for a
hearing on closing the record. The
commission unanimously decided not to
fight the request.
The public records lawsuit is
scheduled to go to trial on March 27.
(1/17/01)


dismisses law suitagain stnew sp aper


A A federal judge dismissed
against the Sarasota News
hat claimed the news
on violated federal wiretap law
:ed on the civil rights of a
defendant by reporting
n from a recorded phone
on.
arie Knautz, who pleaded
1996 plot to kill her husband,
by an undercover detective
Shit man making arrangements
r. The Sarasota Herald-
iblished an article in 1996
information from the


Attor ney advises again str em ovinglibr ary book
OCALA An effort by the Marion the County Commission changed library


County Commission to remove a
controversial book from library shelves
would be unconstitutional, according to
a county attorney opinion.
"It's Perfectly Normal," a sex
education book for children, has come
under attack from some community
members who call the book
"pornographic."
In response to the book controversy,


policy in December to give the
commission authority over which books
stay on the shelf.
However, if the Commission
attempts to remove or restrict access to
a book based on its content, the federal
courts would consider it
"unconstitutional censorship," wrote
County Attorney Gordon Johnston. (12/
5/00 1/11/01)


recorded conversations.
Judge James S. Moody Jr., U.S.
District Court for the Middle District of
Florida,denied the complaint against the
Sarasota News Network, a division of
the Herald-Tribune, because the statute
of limitations for filing the suit had
expired.
Moody wrote that even if the statute
of limitations hadn't expired, the taping
and article didn't violate the law since
the taping was done voluntarily by the
informant, not by law enforcement.
(Knautz v. Wilson, 28 Media Law
Reporter 2589, Dec. 12, 2000)

DECISIONS

ON FILE
Copies of case opinions, attorney
general opinions, or !,.,,i,',.,,i
reported in any issue as "on file" may
be obtained upon request from the
Brechner Center for Freedom of
Information, College of Journalism
and Communications, 3208 Weimer
Hall, University of Florida,
Gainesville, FL 32611-8400,
(352) 392-2273.


2 The Brechner Report U March 2001







LEGISLATIVE


PREVIEW


Severalbillswould affect Sunshine Law exemptions


TALLAHASSEE The state
legislature will consider numerous
bills dealing with Florida's Sunshine
Law during this year's session, which
begins on March 6.
Below is the list of bills, as of Feb.
19, which were taken from the Florida
Legislature's home page, Online
Sunshine, at http://www.leg.state.fl.us.
Chief sponsors of the bills are in
parentheses next to the bill numbers.

SB 92 (Meek, D-Miami)
Legislature/open meetings -
Proposed constitutional amendment to
apply the Legislature's open meeting
rules to meetings between the governor
and the Senate's president-designate
and/or the House's speaker-designate.

SB 692 (Clary, R-Destin)
Physician records of adverse
incidents Would create an exemption
for the reports of adverse incidents in
physicians' and osteopathic physicians'
offices.

HB 3 (Ball, R-Titusville)
SB 714 (Sebesta, R-Petersburg)
Citizens' Right to Honest
Government Act A portion of this
larger bill would make it a second-
degree felony for a public servant to
falsify, conceal, cover up, destroy,
mutilate or alter a public record.
It also makes it a third-degree
felony for a public servant to disclose
information from an active
investigation when that information is
not public record and a second-degree
felony to disclose information about a
closed bid process.

SB 514 (Burt, R-Ormond Beach)
Use of public record information -
Would make it a first-degree
misdemeanor to use a public record or
information from a public record to
commit a misdemeanor and would
make it a third-degree felony to use
public records to commit a felony.

SB 524 (Burt, R-Ormond Beach)
Criminal use of personal
information Would increase the
penalties for crimes involving
personal-identification information if a
public record was used in collecting
the personal information.


HB 365 (Hogan, R-Jacksonville)
SB 840 (Saunders, R-Cape Coral)
Public records/health/financial
records Would create a public
records exemption for financial
information given to the Department
of Health. The records could be
released with written consent, in a
medical emergency or under a court
order.

SB 270 (Silver, D-North Miami)
DNA testing and analysis Would
create an exemption for the results of
DNA tests. The results of tests on
accused felons would only be given to
law enforcement, criminal justice
officials and defendants' attorneys. All
results of DNA testing will be
destroyed if the person is not
convicted of a crime.

SB 772 (Sanderson, R-Fort
Lauderdale)
Public records/child support
services Would create an exemption
for the names and identifying
information of people who apply for
or receive child-support services from
non-Title IV-D county child-support
enforcement agencies.

CS/HB 275 (Ross, R-Lakeland;
Goodlette, R-Naples )
Campaign treasurers' reports -
Would create a public records
exemption for personal identification
numbers and computer algorithms
used by campaign treasurers to
maintain records security. Would only
go into effect if the legislature passes
HB 273, a bill that would create an
Internet electronic filing system for
campaign finance data.

HB 203 (Ryan, D-Dania Beach)
HB 219 (Rubio, R-Miami)
SB 144 (Geller, D-Hallandale Beach)
Internet/child pornography Would
make it a third-degree felony to
transmit child pornography or send an
image "harmful to minors" to a minor
on the Internet via e-mail. Services that
send e-mail to a list of subscribers
would not be prosecuted.

SB 774 (Dawson, D-Fort Lauderdale)
Arrest record expunction Would
require the Department of Law


Enforcement to expunge the arrest
records of people charged under a law
that is later declared unconstitutional.

HB 261 (Jordan, R-Jacksonville)
SB 252 (King, R-Jacksonville)
Law enforcement background
investigations Would require
employers to release information to
law enforcement officials conducting a
background check on applicants for law
enforcement officer, correctional
officer or probation officer positions.
Applications, evaluations, attendance
records, disciplinary matters and
termination information are among the
documents employers would be
required to release.

SB 242 (Brown-Waite, R-Brooksville)
Recording devices in nursing homes
- Would allow nursing home residents
or residents' families to install audio
and video recording devices in their
rooms.

The following exemptions to the
state Public Records/Open Meetings
Laws are subject to the review and re-
enactment during the 2001 legislative
session under the Open Government
Sunset Review Act. These exemptions
were passed during the 1996 legislative
session. Without re-enactment, these
exemptions would expire on Oct. 2.

HB 389 (Brummer, R-Apopka)
SB 484 (Senate Committee on
Commerce and Economic
Opportunities)
Economic Development Agencies -
Re-enacts and would extend an
exemption (Florida Statutes, Section
288.075(2)) for information regarding
a private entity's plans to locate,
relocate or expand its business
activities. The private entity must
request the confidentiality in writing,
and the confidentiality extends 24
months from the date of the request.
SB 484 would extend the definition of
"economic development agency" to
include any public economic
development agency of a county or
municipality. It also would allow
agencies to extend the period of
confidentiality for an additional 12
months at the request of the private
entity and would allow for a 10-year


The Brechner Report U March 2001 3







LEGISLATIVE


PREVIEW


CONTINUED


extension of confidentiality for trade
secrets. Under the current statute,
public officials cannot enter into
binding agreements with a private
business that has requested
confidentiality until the confidential
information has been made public for
90 days.
The Senate bill would allow public
officials to enter binding agreements at
their discretion without the
confidential information being public
for 90 days.

HB 391 (Brummer, R-Apopka)
SB 486 (Senate Committee on
Commerce and Economic
Opportunities)
Qualified defense contractor tax
refund program Re-enacts and would
extend an exemption (Florida Statutes,
Section 288.1066) for information
contained on refund applications under
the qualified defense contractor and
qualified target industry tax refund
program, including federal employer
numbers, tax information and trade
secrets. SB 486 extends the exemption
to records of insurance premiums and
excise tax payments, information on
tax refund requests and data on the
wages paid and number of jobs created
by the qualified applicant.

HB 405 (Brummer, R-Apopka)
Insurance records Re-enacts and
would expand an exemption (Florida
Statutes, Section 626.921(8)) for
insurance records such as names and
addresses, coverage types, amounts and
costs, effective dates and deductibles.
Currently, records that reveal a trade
secret submitted by the Florida Surplus
Lines Service Office to the
Department of Insurance are exempt
from the Public Records Law, but the
same records submitted by insurance
agents to the Florida Surplus Lines
Services Office are not exempt. The
bill would extend the exemption to
records submitted to the Surplus Lines
Services Office and would apply to
information that would reveal
"information specific to a particular
policy or policyholder" rather than
information that would reveal a trade
secret.

HB 407 (Brummer, R-Apopka)
SB 418 (Senate Committee on
Education)


University health service support
organizations Re-enacts an
exemption (Florida Statutes, Section
240.2996(2)(3)(4)) for certain records
and meetings of university health
support organizations, including
meetings and records concerning
contracts, marketing plans and
employee reviews.
SB 418 also repeals Section
240.2995(6), which required that
meetings of the governing board of a
university health services support
organization be open to the public
except for specified exemptions.

HB 383 (Brummer, R-Apopka)
SB 632 (Senate Committee on
Governmental Oversight and
Productivity)
Payment information Re-enacts an
exemption (Florida Statutes, Section
119.07(3)(z)) for bank account
numbers and debit card, charge card
and credit card numbers given to state
agencies for payments of fees or debts.

HB 385 (Brummer, R-Apopka)
SB 382 (Senate Committee on
Comprehensive Planning, Local and
Military Affairs)
Agency sealed bids Re-enacts an
exemption (Florida Statutes, Sections
119.07(3)(aa)) for documents used
directly or solely by a municipally-
owned utility to prepare and submit
bids.

HB 387 (Brummer, R-Apopka)
SB 454 (Senate Committee on
Commerce and Economic
Opportunities)
Florida Sports Foundation Re-
enacts an exemption (Florida Statutes,
Section 288.12295) for the identities
of donors to the Florida Sports
Foundation, a direct-support
organization that promotes the sports
industry and amateur athletics. The
donors must request anonymity.

HB 399 (Brummer, R-Apopka)
SB 384 (Senate Committee on
Comprehensive Planning, Local and
Military Affairs)
Emergency 911 records Re-
enacts an exemption (Florida Statutes,
Section 365.171(15)) for the name,
address, telephone number and
identifying information of people
requesting emergency service or


reporting an emergency.

HB 393 (Brummer, R-Apopka)
SB 456 (Senate Committee on
Commerce and Economic
Opportunities)
Florida Tourism Industry Marketing
Corp. Re-enacts an exemption
(Florida Statutes, Section
288.1226(8)) for the identity of
people who respond to marketing and
advertising research projects
conducted by the Florida Tourism
Industry Marketing Corp. and for trade
secrets obtained in connection to the
research.

HB 395 (Brummer, R-Apopka)
Airports and airport employees -
Re-enacts an exemption (Florida
Statutes, Section 331.22) for security
plans, photographs, maps, blueprints,
drawings, and other materials that
show airport-operating facilities.

HB 397 (Brummer, R-Apopka; House
Committee on State Administration)
Payment of tolls Re-enacts an
exemption (Florida Statutes, Section
338.155(6)) for personal information,
including bank account numbers,
checks, and debit card, charge card and
credit card numbers, gathered by
government agencies in collecting
tolls or fees.

HB 401 (Brummer, R-Apopka)
SB 414 (Senate Committee on Health,
Aging and Long-Term Care)
Health care information Re-
enacts an exemption (Florida Statutes,
Section 408.185) for information
submitted to the Attorney General by
health care organizations as part of an
antitrust reviews, including preferred
provider and health maintenance
organization contracts, trade secrets,
marketing plans and business data.

HB 403 (Brummer, R-Apopka)
SB 804 (Senate Committee on
Criminal Justice)
Pawnbroker transactions Re-
enacts an exemption (Florida Statutes,
Section 539.003) for pawnbroker
transaction records given to law
enforcement officials, including the
name, address and thumbprint of the
seller, a description of the goods, the
amount paid for the goods and the date
and time of the transaction.


4 The Brechner Report U March 2001







ACCESS MEETINGS CONTINUED


better prompts

investigation
ST. PETE BEACH -A letter critical
of a developer has prompted an
investigation of the members of a City
Hall Advisory Committee for potential
Sunshine Law violations.
The advisory committee, which is
monitoring the building of a new city
hall, circulated and initialed a memo
critical of developer Paul Skipper
without holding a public meeting. Jack
Ohlhaber, the committee's chairman,
said he drafted the letter then called
committee members individually and
asked them to come to his home to read
and initial the memo.
The Pinellas-Pasco State Attorney's
Office is conducting the investigation
and interviewing the committee at the
request of the police chief and the city
manager.
The controversy surrounding the
committee prompted member Charles
Keator to resign in late December. (12/
7/00 12/31/00)

Judge rules against

motorcycleclub
JACKSONVILLE A federal judge
granted summary judgment for
Twentieth Century Fox in a defamation


OCALA A circuit court judge in
Marion County in January refused to
dismiss a St. Petersburg Times' lawsuit
that claims Citrus County violated the
Open Meetings Law and state bidding
guidelines in awarding an advertising
contract.
The St. Petersburg Times and the
Citrus County Chronicle both
submitted proposals to compete for the
county's legal advertising contract.
Interim County Administrator Richard
Wesch talked with the Chronicle about


the sealed bids and later recommended
to the commission that the contract go
to the Chronicle.
Times Publishing, owner of the
Times, sued the commission, saying that
the process violated state law. Judge
Carven Angel, 5th Judicial Circuit,
dismissed the Times' first lawsuit, filed
in September, but allowed the company
to refile. (Brechner Report, Dec. 2000)
He ruled in January that the
newspaper's second effort could
proceed. (12/2/00 1/18/01)


Tennis star's hearingruledopen to public
MIAMI Tennis star Boris Becker and personal information would put his
and wife, Barbara Feltus Becker, settled children at risk from kidnapping.
issues in their divorce and custody battle Judge Maynard "Skip" Gross, 11th
after a judge refused to bar the public Judicial Circuit, ruled on Jan. 4 that the
from hearings in the case. Becker public could attend the hearings but said
requested that hearings scheduled for some financial documents could be
Miami-Dade family court be closed to sealed. The Beckers settled in late
the public, saying that revealing financial January. (1/4/01 1/27/01)

Town to pay official's fees in Sunshine dispute


GOLDEN BEACH The Town
Council voted to pay more than $15,000
in legal fees for three town officials,
including more than $7,000 for a
councilman accused of a Sunshine Law
violation.
The vice mayor and two council
members involved in three separate


and privacy lawsuit brought by members cases. One of the council members, Al
of the Outlaws Motorcycle Club. Paruas, was involved in an Open
The bikers sued the company over an ws
episode of "America's Most Wanted," Newspaper granted
which profiled the club's president. The summaryjudgment
three-minute segment showed 15
seconds of footage taken outside of the FORT MYERS A circuit court judge
Daytona Beach Outlaws' clubhouse in Lee County has granted summary
during the city's Bike Week. judgment in favor of the News-Press of
The Daytona club members shown Fort Myers in a libel case.
sued for defamation, unauthorized Robert Conidaris and Grace
publication of name or likeness, Conidaris, owner of the Lani Kai Resort
invasion of privacy and negligence. Hotel, sued the newspaper and columnist
Judge Ralph Nimmons Jr., Sam Cook for statements made in
U.S. District Court for the L ) L a March 30, 1998, editorial titled,
Middle District of Florida, "Look out for falling people at


ruled against the bikers, writing in his
order that they hadn't proven that the
contested statements in the report
concerned them. Nimmons also wrote
that the videotape was taken from the
street while the club members were in
public view so it wasn't an invasion of
privacy. (Miller v. Twentieth Century
Fox International Corp., 29 Media Law
Reporter 1087, Jan. 16, 2001)


Lani Kai."
Judge Isaac Anderson Jr., 20th
Judicial Circuit, granted summary
judgment for the newspaper.
He ruled that statements made in the
article were "substantially true" and part
of an opinion piece that deserved the
"highest level" of protection against libel
claims. (29 Media Law Reporter 1030,
Jan. 2, 2001)


Meetings Law case after he ejected a
resident from a November 1999 meeting
to select a town manager and town clerk.
Paruas, who had been in office for 10
months at the time of the incident, should
have known the meeting was public, say
investigators with the state attorney's
office, who are still investigating the
case. Paruas' current legal fees add up to
$7,125.15. (12/31/00)


THE BRECHNER

REPORT

Brechner Center for Freedom of Information
3208 Weimer Hall, P 0 Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www jou ufl edu/brechner/
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Director/Executive Editor
S. Camille Broadway, Editor
Jackie Thomas, Production Coordinator
Meghan McShane, Production Assistant
The Brechner Report is published 12 times a year
under the auspices of the University of Florida
Foundation The Brechner Report is a joint effort of
The Brechner Center for Freedom of Information, the
University of Florida College of Journalism and
Communications, the Florida Press Association, the
Florida Association of Broadcasters, the Florida Society
of Newspaper Editors and the Joseph L Brechner
Endowment The Brechner Report thanks Gregg D
Thomas and Colleen Ahern for their contributions to this
issue


The Brechner Report U March 2001 5


Adver tisinglaw suit allowed to proceed




























Mediation program keeps disputes outofcourt
The strength of a free society is derived from the opinion regarding its responsibilities under the
people's ability to participate in the democratic pertinent statutes. The opinion concluded that the
process. If Floridians are unable to review public letters should be released, and the agency complied.
records or attend public meetings, they are deprived of Many mediation disputes involve disagreements
the opportunity to exercise basic rights secured for over access to electronically stored records. The
them under state law and the Constitution. problem usually does not stem from a denial of access


The The open
government P
Back Page mediation PatGle
ByPatleason program was
By Pat Gleason established to provide a
forum for resolving disputes over public records and meetings.
Since the program's inception nearly 10 years ago, hundreds of
public access controversies have been resolved through
mediation. Last year, more than 100 new cases opened. Private
citizens, businesses, and the news media were among those who
turned to mediation after their requests for records or access to
meetings were ignored, delayed, or outright denied. Government
agencies at the state, county and municipal levels chose to
participate in mediation in order to avoid unnecessary litigation.
In one case, for example, a television station asked for
mediation assistance after a local sheriff banned the station
from attending press conferences conducted by his office. The
station was also told that it would not receive any notice of
future press conferences. The sheriff's attorneys, who were out
of town, were located and advised of the situation by the
mediation program. The ban was promptly rescinded and a costly
legal battle avoided. Both the government (meaning the
taxpayers) and the requesting citizen benefit when a public
access problem can be solved without litigation.
While most mediation conflicts are resolved quickly by a
telephone call or simple letter, in some cases the nature of the
dispute requires a more time-consuming formal solution. For
example, a reporter contacted the Attorney General's Office
when a state agency told him that he could not have letters on
file at the agency containing information about potential
lawsuits against medical professionals. The agency said that even
though no statute expressly exempted the letters from
disclosure, it could not release them because of statutory
restrictions barring disclosure of disciplinary complaints. After
mediation was initiated, both the agency and the reporter agreed
that the agency should ask for a formal Attorney General's


to computer records, as most public agencies now
know that the Public Records Law encompasses
ison records stored in a computer, although a few public
officials forget that this includes e-mail. However, a reporter
seeking computer records is sometimes told that it will cost
hundreds or even thousands of dollars to get the records
because of programming and other costs that must be passed
along to the person making the request. Several reporters and
private citizens turned to mediation to attempt to resolve such
disputes. In one case, a law enforcement agency told a
reporter that it would cost more than $11,000 to obtain crime
information, even though other agencies had provided similar
information at a lower cost. After discussions among the
newspaper's lawyer, the sheriff's lawyer, and the software
company, it was agreed that the agency could reduce the cost
significantly by using a different computer program.
Although many mediation cases are initiated by citizens who
have been denied access, this is not always the case. On one
occasion, a mayor contacted the office to complain that the
city manager had ignored his public records requests. After
mediation was initiated, the city attorney instructed the
manager to provide the records and the dispute was resolved.
The mediation process succeeds when the government and
the citizen share the common goal of ensuring that the public
records and meetings laws are fully complied with. An
increasing number of public agencies are realizing that
mediation can be an effective way to avoid expensive litigation.
When this occurs, the program has reached its objective.
Ideally, the number of cases should decrease as educational
efforts to ensure full compliance with the open government
laws reach government at all levels, making disputes a thing of
the past. Until that time, the program will continue to be an
option for resolving controversies outside the courtroom.

Pat Gleason, general counsel in the Office of Attorney
General, has conducted the mediation program since 1991.




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